The Complainant is Miele, Inc., a corporation organized in the state of Delaware, United States of America (USA), with its corporate offices located in Princeton, New Jersey, USA.

The Respondent is Absolute Air Cleaners and Purifiers, of Durango, Colorado, USA.

2. The Domain Name and Registrar

The disputed domain name is "MIELE.NET."

The registrar of the disputed domain name is Internet Domain Registrars, d/b/a Registrars.com, with a business address in San Francisco, California, USA.

3. Procedural History

The essential procedural history of the administrative proceeding is as follows:

The Complainant initiated the proceeding by the filing of a very brief Complaint via e-mail, received by the WIPO Arbitration and Mediation Center ("WIPO") on July 10, 2000, and hardcopy received by WIPO on July 12, 2000. Payment by Complainant of the requisite filing fees accompanied the courier mailing. On July 20, 2000, WIPO completed its formal filing compliance requirements checklist.

On July 20, 2000 WIPO transmitted notification of the Complaint and initiation of the proceeding to the Respondent via e-mail, facsimile, and courier; this document represented July 20, 2000 as the commencement of this administrative proceeding (Rules for Uniform Domain Name Dispute Resolution Policy, para. 4(c)). On July 20, 2000, WIPO also transmitted notification of the Complaint to the Complainantís authorized representative via email.

Although the Respondent did not file a properly formatted response to the Complaint, it sent a series of emails between July 25 and August 7 to the Center in response to the Complaint. The Panel elects to consider the substance of these emails as the Respondentís response to the Complaint.

The Panel has not received any requests from Complainant or Respondent regarding further submissions, waivers, or extensions of deadlines, and the Panel has not found it necessary to request any further information from the parties. The proceedings have been conducted in English.

4. Factual Background

The Panel attempts to outline the factual background of this case, in the face of a dearth of specific facts. Specific details regarding the chronology of events were not provided by either party. Thus, the Panel must rely on the bare facts it was given.

The Complainant is Miele, Inc., the American subsidiary of a Swiss Corporation, IMANTO AG, which is wholly owned by Miele-Beteiligungs GmbH, a German Corporation. This German grandparent company is the alleged owner of a U.S. Trademark Registration for the mark MIELE. Complainant alleges use of the mark, inherently pursuant to permission from its grandparent corporation which owned the trademark registration, in connection with the production and sale of various products, including vacuum cleaners and kitchen appliances. The Complainant operates a website at MIELE.COM.

The Respondent apparently registered the domain name MIELE.NET while he was an authorized dealer of Miele products. The Respondent used the domain name for a website that promoted his dealership and sold Miele products. At some point, allegedly approximately two years ago, the Respondent lost its status as an authorized dealer of Miele products. The Respondent moved to another state, and unsuccessfully sought approval from the Complainant to become an authorized Miele dealer again. Since this time, the Complainant has allegedly made repeated requests to the Respondent to transfer the domain name to it. Respondent has refused these requests, and apparently linked the domain name to a website operated by the non-profit Joseph P. Miele Foundation, found at the MIELE.ORG domain name.

5. Partiesí Contentions

A. Complainant

The Complainant states that it never gave the Respondent permission to register the MIELE.NET domain name. Complainant alleges that the Respondent refused to transfer the domain name in return for his out-of-pocket expenses unless he was allowed to re-establish his dealership to sell Miele products on the Internet. Thus, Complainant alleges, Respondent is holding the domain name for the sole purpose of selling or transferring it to the Complainant for valuable consideration in excess of the Respondentís out-of-pocket expenses directly related to the domain name.

B. Respondent

The Respondent alleges that he registered and used the MIELE.NET domain name in connection with his Miele dealership with the full knowledge and approval by the Complainant. He states that he was forced to sell his business after a car accident, and had to relocate to another state. He claims that the Complainant refused to allow him to be an authorized dealer of Miele products again, and demanded the transfer of the domain name.

Respondent claims he wants to transfer the domain name to the Joseph P. Miele Foundation, whose founder is allegedly one of his friends. It appears that Respondent has not, however, transferred the domain name to this third party, but instead has linked the domain name to that partyís website, found at MIELE.ORG. In one of his emails, Respondent offered to sell the domain name to the Complainant, with the proceeds to be split in some fashion between the Joseph P. Miele Foundation and himself (for family medical expenses).

6. Discussion and Findings

Paragraph 4(a) of the Policy instituted three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:

(i) respondentís "domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and"

(ii) respondent has "no rights or legitimate interests in respect of the domain name; and"

(iii) respondentís "domain name has been registered and is being used in bad faith."

Each of these three elements must be proved by a complainant to obtain relief. Paragraphs 4(b) and 4(c) of the Policy provide further nonexclusive criteria for determining whether the Registrant has engaged in abusive domain name registration with respect to subparagraphs 4(a)(ii) and 4(a)(iii).

A. Identity of Respondentís Domain Name and Complainantís Trademarks

The Complainantís grandparent corporation has a long-established U.S. Trademark Registration for the mark for vacuum cleaners. The Panel finds that the Complainant, through its affiliation with its grandparent corporation which owns the trademark registration, has rights in and duties concerning the mark MIELE. The Panel furthermore finds that the MIELE.NET domain name is identical to the MIELE mark in which the Complainant has rights.

Thus, Panel finds for the Complainant on the first element, that Respondentís domain name is identical or confusingly similar to a mark in which the Complainant has rights and has duties to the grandparent corporation.

B. Respondentís Rights or Legitimate Interests in the Domain Name

The Panel considers the nonexclusive list of factors found in Paragraph 4(c) of the Policy to determine whether the Respondent has rights or legitimate interests in the disputed domain name. The Panel finds that the Respondent has no rights or legitimate interests in the domain name.

The Panel finds that, as an authorized dealer of Miele vacuum cleaners, the Respondent initially had a legitimate interest in the domain name. The Panel notes that the Complainant has not alleged that the Respondent violated a dealership contract or agreement between them that limited the Respondentís ability to use the MIELE mark. In the absence of a dealership contract or agreement between the parties that limited the Respondentís interest in using the MIELE mark to bring attention to his authorized business selling Miele products, the Panel finds that the Respondent initially had a legitimate interest in the domain name.

However, to the extent Respondent had such an interest, it was an interest derived from his dealership relationship with Complainant. Once the Respondent lost its status as an authorized dealer, the derivation of its interest terminated and it lost that legitimate interest in the domain name. Essentially, the Respondentís interest in the domain name was dependent upon its status as an authorized dealer of Miele vacuum cleaners. Since the domain name was registered and used, by Respondentís own admission, solely to sell Miele products under the dealership and to otherwise promote his business selling Miele products, the loss of that authorized dealer status resulted in the loss of the effective legitimacy of Respondentís interest in the domain name consisting of the MIELE trademark.

Thus, Panel finds for the Complainant on the second element, that Respondent has no rights or legitimate interests in respect of the domain name.

C. Respondentís Registration and Use of the Domain Name

The Panel considers the nonexclusive list of factors found in Paragraph 4(b) of the Policy to determine whether the Respondent registered and used the disputed domain names in bad faith.

As aforesaid, the Panel finds that when the Respondent lost its Miele dealership, it lost the appropriate basis justifying the registration of the domain name in the first place. In effect, the Respondent derived his good faith in the original registration from the Complainant trademark owner. The Panel finds that the Respondentís insistence in owning the domain name after losing his dealership constitutes use of the domain name in bad faith, since the justification for his registration has been lost and the rightful trademark owner has requested the domain name. The Panel also finds that, having lost the justification for having the domain name in the first place, the Respondentís subsequent offer to sell the domain name to the Complainant constitutes use of domain name in bad faith.

In addition, it is the Panelís belief that the Respondent can not properly manufacture a good faith post-hoc use of the domain name with regard to the Joseph P. Miele Foundation. The Foundation approached the Respondent to acquire the domain name, but the Respondent did not transfer the domain name, apparently because it was still attempting to use it as a bargaining tool to acquire a new Miele dealership.

Whether the Respondent registered the domain name in bad faith is another matter. The Panel notes that the Policy specifically requires a finding of bad faith use "AND" bad faith registration of the domain name. The legislative history of the word "and" in the Policy commands the construction that "and" be given meaning, and "or" not be substituted. See Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy submitted to the ICANN Board at its meeting on October 24, 1999, para. 4.5(a).

The Panel finds that the Respondent did not initially register the domain name in bad faith, because he registered it to promote his business and attract customers as authorized by the trademark owner whose products he was selling with full authority of the trademark registrant. The Panel maintains this finding, even though the Respondent registered the domain name apparently without the explicit express consent of the Complainant trademark owner. As a dealer in the trademarked products, Respondent was authorized to advertise the products under the mark and to draw attention to the mark Ė authorized acts he would use the domain name to perform. As noted previously, the Complainant did not allege that the registration was in violation of any contract or agreement that restricted the Respondentís use of the MIELE mark or would create any inference of bad faith at the time of registration.

The Panel notes that the circumstances surrounding the registration of the domain name in this case do not fall within the examples of prohibited conduct listed in paragraph 4(c) of the Policy. Although the listed examples are not exhaustive of the kinds of bad faith registration encompassed by the Policy, the Panel must take heed of the fact that the circumstances surrounding the domain name registration in the instant case do not fall within the kind of conduct intended to be covered by the Policy. The legislative history of the Policy indicates that it was promulgated to tackle egregious cases of cybersquatting, leaving other disputes to the courts for resolution:

[T]he policy adoptedÖcalls for administrative resolution for only a small, special class of disputes. Except in cases involving "abusive registrations" made with a bad faith intent to profit commercially from othersí trademarks (e.g., cybersquatting and cyberpiracy), the adopted policy leaves the resolution of disputes to the courts (or arbitrators where agreed by the parties) and calls for registrars not to disturb a registration until those courts decide. The adopted policy establishes a streamlined, inexpensive administration dispute-resolution procedure intended only for the relatively narrow class of cases of "abusive registrations." Thus, the fact that the policyís administrative dispute-resolution procedure does not extend to cases where a registered domain name is subject to a legitimate dispute (and may ultimately be found to violate the challengerís trademark) is a feature of the policy, not a flaw. The policy relegates all "legitimate" disputes Ö to the courts; only cases of abusive registrations are intended to be subject to the streamlined administrative dispute-resolution procedure.

Second Staff Report on Implementation Documents for the Uniform Dispute Resolution Policy submitted to the ICANN Board at its meeting on October 24, 1999, para. 4.1(c).

Thus, even though the Panel finds that the Respondentís continued maintenance of the domain name constitutes use in bad faith, the Panel can not find that the Respondent registered the domain name in bad faith within the narrow meaning and confines of the Policy as adopted. The Panel finds that it would be improper for it to impose equitable justice in this case in this forum, in light of the legislative history of the Policy. Rather, the Panel must conclude that there is a failure by the Complainant to meet this requirement of the Policy, because the Respondentís conduct at the time of registration was not bad faith conduct.

The Panel makes this finding with the knowledge that the Complainantís loss in this proceeding in this forum does not prevent the Complainant from seeking a different result under a more suitable body of law in a more appropriate forum. For example, the Complainant may assert its cause in a U.S. District Court proceeding under the Anticybersquatting Consumer Protection Act, 15 U.S.C. ß1125(d).

The Panel finds that the Respondent used the domain name in bad faith, but did not initially register the domain name in bad faith. Thus, Panel finds for the Respondent on the third element.

7. Decision

For the foregoing reasons, the Panel decides:

1. That the MIELE.NET domain name registered by the Respondent is identical or confusingly similar to the trademark in which the Complainant has rights;

2. That the Respondent has no rights or legitimate interests with respect to the MIELE.NET domain name; and

3. The Respondentís MIELE.NET domain name has been used but was not initially registered in bad faith.

Accordingly, the ICANN Policy reading "registered and Ö used in bad faith" requires that the Complaint be denied and transfer of the MIELE.NET domain name be refused.